from the perhaps dept

At the end of August, when Microsoft officially appealed its loss in a patent infringement lawsuit filed by a company named i4i over features for editing XML in a document (patent 5,787,449), I doubted that the Supreme Court would hear the case, given the lack of any larger significance. However, I may have underestimated how much the tech and legal community would rally behind a key point in the appeal: the legal standard for invalidating a patent -- something the Supreme Court hinted it had trouble with way back in the famous KSR case.

In court, parties have to prove their case by some "standard of proof." In almost all civil cases, the standard is "preponderance of the evidence" -- meaning it is more likely than not that the facts are true. When the question is invalidating a patent, however, the U.S. Court of Appeals for the Federal Circuit decided that a defendant trying to prove a patent invalid must do so by a higher standard than normal civil cases, that of "clear and convincing" evidence. "Clear and convincing" means that the facts are "highly probable," which is a much more difficult standard to meet when trying to invalidate a patent than just a preponderance.

Considering the massive economic harm that bad patents can do, you would think that it would absolutely make sense for there to be a lower standard to invalidate bad patents. And, certainly, it seems that lots of folks agree. The link to Law.com above has links to most of the briefs filed in support of changing the standard -- including summaries of what's in each brief. We already mentioned EFF (whose filing was done with Public Knowledge, CCIA and the Apache Software Foundation), but other briefs came from CTIA, Google, Yahoo, Intel, Apple, Verizon, Facebook, Wal-Mart, HP, Dell, HTC, Intuit, Toyota, Netflix, Newegg, SAP, GM, Teva Pharmaceuticals, Cisco and a few others as well. In other words, there are a lot of folks interested in this issue, and reasonably see this as an important way to stop the harm caused by bad patents.

The key issue, of course, is that patent examiners really don't have that much time to spend on patents, so their ability to really review the state of the art and the prior art is limited. That's not putting down the patent examiners; it's just the fact of the matter. An average examiner spends just a few days on a patent, which is hardly enough time to recognize what the real state of the art might be. So it seems to make a lot of sense to have a low bar to proving a patent invalid at a later date -- especially if more evidence can be shown on the state of the art at the time.

Along those lines, in a filing by a bunch of law, economics and business professors it's pointed out that, not only do patent examiners not have nearly enough time to understand the state of the art, but that a patent examination process happens with no real "opposition," who has the real incentive to point out the state of the art or the prior art. That's what happens during a trial, and that's a more likely situation to be able to fairly evaluate patent quality. Thus, the courts shouldn't put too much weight on the examiner's determination, as it's hardly the best review.

Another key point made in the filings, is the fact that, back before CAFC (the appeals court that handles most patent appeals) was created and started using this standard, disputed patents were much more likely to be rejected as invalid. However, since this change has occurred, a much higher percentage are held valid. The quality didn't change -- those are still bad patents. It's just that the standard for invalidating bad patents changed. It's hard to see who would argue that leaving bad patents in place is a good thing... unless your business relies on bad patents.

I'm still not convinced the Supreme Court is really interested in taking this on, but given the amount of firepower asking it to fix this issue, perhaps the Court will do the right thing.

Reader Comments

Branches

Prior to becoming a judge or legislator, a person usually becomes a lawyer.

Lawyers bill by the hour. Therefore, the more complex and unsolvable a legal system is, the more money a lawyer can make.

Those lawyers that graduate into making laws seem to always make laws which will result in more billable hours for their lawyer friends.

Those who become judges seem to make precedent decisions which will result in more billable hours for their lawyer friends.

Is it any wonder our legal system is screwed to high hell? There is absolutely no incentive anywhere along the chain for anybody (who can make a difference: see voting*) to make legal proceedings clear, timely and inexpensive.

*Voting: the process by which a consumer/tax-payer in a nation wastes some of his or her time in order to feel that they have contributed to the way in which the country will be run.

Re:

They're not going to win the case against Motorola. They're just posturing for a settlement. If it goes to trial and that the patents in question stand a chance of being invalidated, they'll make an offer, to license for an undisclosed sum. Giving the appearance that their IP is valid, is very important to MS, who's founding CEO, was so outraged at patents in his software industry, that he started the first patent alliance, in Microsoft Technology Parters. Where in, members agreed not to sue one another or MS over what was refereed to as "idea patents". Once the big money grabs started, they remove the "other partners" clause and just made them agree not to sue MS. and went on the war path, they now collect money from companies that distribute Linux, though they have never contributed (some would say, actually hindered) Linux.

My heart weeps

Seeing as how MS is one of the reasons we have this mess right now, I find it difficult to see how they're going to spin this. They essentially want a ruling that says "it's ok when we do it, but not when it's done to us". I point to the EU, and the intense lobbying MS funded over there. They also pillage billions every year for blanket "protection" from their IP goons.

It'll help large companies

The way I see this is that it'll help the large companies without helping smaller companies. It'll likely make it cheaper to invalidate a patent than it currently is thus driving down the extortion charges from questionable patent holders. But the bigger companies can afford the hit. The problem is, with a smaller company the diversion of focus and resources to fighting any patent fight is often fatal in the earlier stages. Thus the large companies will be able to better fend off patent attacks while still being able to attack smaller nimbler competitors that out innovate the bigger companies.

Truly

The US system of law became"Screwed to high hell" when the United States Constitution was relegated to second place by Legal Precedents.
Instead of original intent, you now have living document.
This is why we are now in the situation that we are in.
For instance back in 1919 it took the 18th amendment to ban alcohol.
Now it only takes 270 people to ban or allow something.
This is where the problem is.

The "clear and convincing" standard was enunciated in the federal appellate courts long before the CAFC was even established, so trying to frame this issue as something done sua sponte by the CAFC is plainly wrong.

Its genesis is attributed to the Supreme Court opinion authored by Justice Cardozo on behalf of a unanimous court in the matter of:

Through all the verbal variances, however, there runs this common core of thought and truth, that one otherwise an infringer who assails the validity of a patent fair upon its face bears a heavy burden of persuasion, and fails unless his evidence has more than a dubious preponderance.

Re: Re: Re:

There seems to be an undercurrent of belief that patent examiners are overworked, thus being unable to actually understand the claims in an application, and those pressing patent applications before examiners are purposely engaged in trying to "hide the ball". I take umbrage at such a grossly simplistic exaggeration made by persons who in large measure have never even sullied their hands by engaging in even one instance of preparing and prosecuting an application from start to finish.

As to the former, most certainly this is not the general rule, and as to the latter the rules of practice applicable to the members of the patent bar impose a high standard of candor since prosecution takes place on an ex parte basis.

Moreover, many who keep deriding the patent prosecution process keep ignoring that the test is built around a PHOSITA, which is not altogether accurate since the test is actually a PHOSITA to which the subject matter of the claimed invention, considered as a whole, relates.

Re: Re: Re: Re:

There seems to be an undercurrent of belief that patent examiners are overworked, thus being unable to actually understand the claims in an application, and those pressing patent applications before examiners are purposely engaged in trying to "hide the ball".

I haven't seen anyone make that claim. What I have seen people claim -- quite credibly -- is that spending less than 20 hours on a patent is hardly enough time to understand the prior art or the state of the art.

You deny this point?

No one is claiming that patent examiners are doing anything nefarious. We're just making a simple point. For someone who regularly berates me in public (anonymously, though we know you're a patent lawyer) for being too quick to judge whether something is obvious -- even in situations when I was intimately involved in the space for many years -- I find it absolutely hilarious that you think patent examiners have no problem understanding the relevant state of the art in 15 hours.

Re: Re: Re: Re: Re:

There are exceptions to every rule, but it is not readily understood that in most art units at the USPTO the examiners are, because of what they review daily, up to speed on the relevant technologies. If both the attorney presenting an application and the examiner reviewing same are well versed in the applicable art, the time involved in prosecuting an application is not as time consuming and laborious as many may think. Thus, in most instances I would deny the point.

If I say something you perceive as berating, it is not intended to be a personal attack. It is merely to note that over the years I have learned that what may seem obvious at first glance is only rarely shown to be the case during prosecution. Again, this is my experience...which is generally associated with the more difficult and complex arts.

Re: Re: Re: Re: Re: Re:

Are the patent examiners reading journals in computing science.. and still manage to give the one-click and most other such vague patents (assuming for a moment one-click were not abstract algorithm)?

I think the standard, by law and by practice, is simply way too low, but part of the reason might be the pressure to resolve the huge backlog of patents.. it's easier to say yes, than to keep fighting another round every time they say no.

Re: Re: Re: Re: Re: Re: Re:

Actually is is easy for the patent office to keep saying no & this is how the backlog became so large. Big business interests usually have an entitlement mentality and think that they should have the right (much like Mike) to take inventions without compensating the inventor. In fact, the whole troll thing was cooked up by Intel when a small company that they had run into bankruptcy sold some important patents to another party. In that way the inventor was able deal a blow to their persecutors.

Big companies like to whine about venue, yet for many decades they took advantage of venue to get the court of their choice to rubber stamp their theft of inventors patent property rights. While they still own some venues they don't own them all.

What is important today is that these companies do have the ability to influence the USPTO to run interference on their behalf. In fact, their influence even extends to being able to hand pick top USPTO leadership regardless of which party is in power.

Big business is not very inventive. There is a big difference between filing for lots of patents and actually producing a really significant invention. Small incremental inventions do have value, but in a different way than more important inventions.

Anyway, the goal of big business is to turn the patent system into a kings sport. Endless rejections of small entity patents is one way to do this. Patent Deform legislation is another.

Public relations campaigns in the form of paid bloggers, buying select journalists or at least buying their employers with advertising revenue is another. Putting select academics on their payroll is yet another.

Re: Re: Re: Re: Re: Re: Re: Re:

"Big business is not very inventive. There is a big difference between filing for lots of patents and actually producing a really significant invention. Small incremental inventions do have value, but in a different way than more important inventions."

I thought i was the only person in the world to have realized this. Ronald, i must say your comments are insightful and do speak to the heart of every inventor who have had their ideas stolen by big companies...

Re:

Just how dirty is Mikey?

The idea that a patent should be easy to invalidate is as obscene as anything written on this blog.

It resonates well with the behavior of Microsoft and other wealthy companies that know they can stack the deck against small inventors and spend them to death whenever it suits their purpose and goal.

Microsoft rides the lies of the Mikeys of this world who pretend that a loss to MS is somehow societies loss but the crushing of an inventor the actual source of the good this society and certainly Mikey uses everyday is justice.

Re: Just how dirty is Mikey?

The idea that a patent should be easy to invalidate is as obscene as anything written on this blog.

Hi Vic. If a patent is strong and there is no prior art, then there's no problem. The only reason to object to the lower standard is if you have awful patents.

Would you care to share which patents you have?

Microsoft rides the lies of the Mikeys of this world who pretend that a loss to MS is somehow societies loss but the crushing of an inventor the actual source of the good this society and certainly Mikey uses everyday is justice.

Vic, apparently, only reads the posts that RJR sends him to (why do Vic and RJR always only post on the same posts?) and didn't notice in the very next post I slam Microsoft's patent practices, as I've done for years.

Re: Just how dirty is Mikey?

Hey, Angry Dude!!!, Long time no see! I'm just wondering why you would post as "Vic Kelly" before posting as your "invention helper" "business" moniker. Is it because it looks less than professional, to make unsubstantiated claims, defaming Mike's character? Because your accusations not only sound like the paranoid conspiracy theories of an uneducated alcoholic, they sound... well, we can just leave it at uneducated alcoholic.

Have a great weekend! And remember, call a cab, it's not worth the risk.

Re: Just how dirty is Mikey?

Coalition for Patent Piracy & Fairness

Piracy Coalition members leave no stone unturned in their efforts to turn the patent system into a king's sport. They are desperate to get an unlimited get out of jail free pass.

They have been handed their heads on Patent Deform once again and already their stooges are claiming that 2011 is the year for Patent Deform. We have been hearing these claims every year since 2005. They are good at two things, endless creative public relations propaganda (including buying bloggers) and stealing others inventions.

Re: Coalition for Patent Piracy & Fairness

Piracy Coalition members leave no stone unturned in their efforts to turn the patent system into a king's sport. They are desperate to get an unlimited get out of jail free pass

I'm curious, Ronald, how is getting rid of bad patents a get out of jail free card. Again, nothing in lowering the standard would impact good patents. It only impacts bad patents.

Why would you possibly be against that?

They have been handed their heads on Patent Deform once again and already their stooges are claiming that 2011 is the year for Patent Deform. We have been hearing these claims every year since 2005. They are good at two things, endless creative public relations propaganda (including buying bloggers) and stealing others inventions.

Ronald, since 2005, I've pointed out to you that I don't support the patent reform proposals, and you continue to pretend that I do. Then you suggest I'm bought by those who support it, even as I trash them for their own patent practices (see the very next post for example).

Is it so hard to recognize what I'm saying without making up lies about me?

Re: Re: Re: Coalition for Patent Piracy & Fairness

"For every patent which is litigated patent thieves get away with stealing scores of other patents. "

You're right, and that's why I say, the patent system is irrelevant. It's as antiquated as you're web site. There is no reason, an "inventor" should bother to seek a patent. The only thing is offers is incentive to sue. This, as you know, is due to fact that it costs 1100% more(factoring inflation) to litigate infringement in 2005, than it did in 1998. That's how the large companies shut the little guys out, while gaining the leverage to form a union/conspiratorial body around patent litigation.

In essence, patent disputes a are of little value to an inventor. They can't afford to litigate and even if they win, the appeals process is designed to drive them out of business. Oh, and if they actually implement their patent, they really get it on counter suits. Thats of course because of the awful patents, that that you defend endlessly. Though, they seem to be of value to you. Which brings me to my next question - If patents were harder to get, as in, let's say they discontinued process patents, how many "inventors" would you have to turn away in your practice?

Re: Re: Coalition for Patent Piracy & Fairness

Mike, you are either a fool or a liar to say that nothing in lowering the standard would impact good patents. With district judges the best of patents are at risk because they generally are neither scientists nor interested in technology cases, as you well know. Lowering the standard will merely let them dump patent cases that much easier so big business can kill creativity. It is MS that is bad not patents. Look at your other post for confirmation.

Re: Re: Re: Re: Re: Re: Re: Coalition for Patent Piracy & Fairness

Yeah, how dare Mike ask you to actually cite some facts rather than spouting your same old tired propaganda. Assuming of course that there are any facts that would support your mind-numbing "Patent Thieves" stance...

It has been my experience that Mike Masnick cites fringe sources and corporate stooges.

Beyond that, Mike Masnick ignores the substantive issues in replies, instead focusing on minuscule and unimportant aspects of such replies in an attempt to mask the fact that his position on patent issues are flat out wrong.

The way Mike Masnick argues reminds me of the way an attorney whose client in in the wrong argues.

We see a stream of people visit TechDIRT who offer reasoned positions who fairly quickly come to disrespect Mike Masnick. They are in my view well justified.

Beyond that, Mike Masnick ignores the substantive issues in replies, instead focusing on minuscule and unimportant aspects of such replies in an attempt to mask the fact that his position on patent issues are flat out wrong.

Ronald, of all the things people can accuse me of, ignoring substantive issues in replies is not one.

I'm still waiting for your substantive reply with a *SINGLE* citation to support your position.

We see a stream of people visit TechDIRT who offer reasoned positions who fairly quickly come to disrespect Mike Masnick. They are in my view well justified.

Ah, the royal "we." From my experience many more people understand these arguments and recognize my position rather than come to "disrespect me." The only people I've seen get upset are folks who abuse the system for profit.

Re: Coalition for Patent Piracy & Fairness

Whoa man, careful. You almost had more content in your ignorant opinion than in your signature, and that would be terrible. After all, your purpose is to shill for your scam organizations, not actually contribute to a meaningful discussion.

What is Mike Smoking?

"Ronald, since 2005, I've pointed out to you that I don't support the patent reform proposals, and you continue to pretend that I do. Then you suggest I'm bought by those who support it, even as I trash them for their own patent practices (see the very next post for example).

Is it so hard to recognize what I'm saying without making up lies about me?"

Maybe you are mixing up different people's comments because I did not suggest in this post that you are a hired stooge but it is clear that some people do think that is the case. I simply pointed out that the Piracy Coalition has misrepresented their prospects of passing the bill year after year. At this point they have spent in excess of a billion dollars trying to pass this bill, a bargain when one considers that they are stealing billions every year. Well it would be a bargain if they were actually competent enough to pass it.

What is a shame is that there are a number of other issues where I would be inclined to support you but your ignorant positions on patents force me concentrate on that.

Re: What is Mike Smoking?

Mike has apparently been inhaling lithium smoke from your exothermic backup battery. Not to worry, we are not buying his misguided "patents are bad" nonsense either on this post or any other. MS should enforce their patents but should pay for those they infringe. R&D gets rewarded that way, not piracy.

Perfectly Simple Fix

The root of the junk patent problem is that they can be used to make money by the patent bar. Get the patent bar out of the poor overloaded US court system. The courts have a huge backlog which they need to deal with. Remember, "Justice delayed is justice denied." The poster child for the patent bar is always the lone inventor who lives off his licensing revenue. News flash: Such inventors pretty much do not exist, they are certainly economically insignificant. The vast majority of inventors are paid by companies who make things, but are building up their patent stockpile "just in case". Defensive patenting is a dead loss economically. Stopping that loss and getting the patent bar out of the courts is simple.

Just get rid of the part of the law which says patent infringement is illegal. Dispose of the concept. The former "patent infringement" is now called "patent use", which is encouraged as promoting competition and helping the economy. Bingo, patent trolls are out of business overnight, the junk patent problem goes away. Patents become a method for inventors to claim inventor status, not owner status. Anybody who wants to implement some technology can do it for themselves, if it really is obvious. If it genuinely is novel and non-obvious, then they check the patent, then hire the inventors to help. All lovely and friendly.

Re: Perfectly Simple Fix

"Just get rid of the part of the law which says patent infringement is illegal. Dispose of the concept."
I'm not saying it would be a bad idea, but just in case it didn't occur to you, you're basically speaking of getting rid of patents, period.
The whole basis for patents to exist is the "exhaustive disclosure of technical specifications in exchange for a temporary monopoly" deal. Without it, there's no patent at all.

Re: Perfectly Simple Fix

Most big companies do file patents for defensive purposes. Unfortunately, they file lots of minor incremental improvements and then thump their chests and brag about how many patents they have. IBM is a very good example of this. It is quantity rather than quality. This is useful when they get in a ta ta with another big company but does nothing to protect then from a small entity with truly disruptive technology.

Defensive patenting still teaches, granted very small teachings and it starts the clock ticking to pass what the invention taught into public domain. In the meantime it may become a catalyst for other inventions.

Here is a concept that Mike Masnick probably understands. Some people do not want to be hired by big companies. They have visions of building their own company and see their inventions as a means of generating the capital to fund their efforts.

Bob Kearns and Gorden Gould came along and waged thirty year wars for their invention property rights. Both won and even more important is that their battles educated the public about how disreputable most of the big companies are.

From the 1920 through the 1960s not one patent was upheld for inventors. The only chance an inventor had was to build a company under the big guys radar and if they made enough money before being noticed they had a chance of surviving and if not the big corporate crooks simply took what they wanted with impunity. At that time inventors were mostly forced to work for big companies.

Then came corporate downsizing and quarter to quarter management. They literally drove all long term planners out and in the process pretty much insured that all significant inventions would be held by small companies.

Patent law does not make infringement illegal. If it did inventors would not need to sue infringers to receive compensation.

"The poster child for the patent bar is always the lone inventor who lives off his licensing revenue. News flash: Such inventors pretty much do not exist, they are certainly economically insignificant."

There are hundreds of thousands of those lone inventors and if their contributions were insignificant companies like Microsoft and IBM would not be whining about mythical trolls and paying out hundreds of millions of dollars in damages.

This post serves as a perfect example of the scope of TechDIRT ignorance and when it comes to patents and their economics Mike Masnick's writings are every bit as bad as the one I am replying to now.

Re: Re: Perfectly Simple Fix

Hey, arrogant jackass; I'm guessing about half the people who read this site have jobs which are directly impacted by patents or copyright - guess what, we don't all think thats a good thing.

You seem to labor under the delusion that every person who has ever had an idea is a precious little creature filled with glorious visions of a utopian society but is getting held down by the man. Get real; for most of us in the technology field, patents have been nothing but a burden.

Re: Re: Re: Perfectly Simple Fix

At last we have found common ground, there is most certainly not shortage of ignorant "arrogant jackasses" among TechDIRT lemmings.

On your second point I submit that EVERYONE's job is impacted by intellectual property and that America is better off for it. Our collective high standard of living cannot be sustained in a global economy if not for the new wealth created by inventors.

TechDIRT is an example of this, big companies feed off others inventions. TechDIRT feeds off those big companies and curries appears favor in a variety of ways.

Re: Re: Re: Re: Perfectly Simple Fix

On your second point I submit that EVERYONE's job is impacted by intellectual property and that America is better off for it. Our collective high standard of living cannot be sustained in a global economy if not for the new wealth created by inventors.

Of course, multiple studies -- as I've pointed to over the years -- have shown this is simply not true. So can you please cite your evidence. I've cited mine over and over again, and they're not "fringe" or "corporate stooges."

TechDIRT is an example of this, big companies feed off others inventions. TechDIRT feeds off those big companies and curries appears favor in a variety of ways.

I find this the most hilarious argument of all. On nearly every other post on this site, I'm accused of hating big companies and wanting to destroy them. But RJR insists it's the opposite.

Could the truth be that neither is the case, and I'm really interested in actually encouraging innovation?

someone else's

"unless your business relies on bad patents"

Your definition of bad patents: someone else's

Great idea. Let's put the patent system out of its misery and flush all possible small start-ups so the goliaths can tell us all to take what they give us or live in abject poverty. We'll all be slaves. Looks like they're trying to buy the courts and the politicians.

Re: someone else's

Supreme Court and patents

As an IP attorney (aka "patent" attorney) I totally agree. I will point out, though, that Congress has been mandating lower fees for small inventors, special treatment for some industries, etc., and since the USPTO is required to be self-sustaining (read; a profit-making organization) but Congress has an interest in reducing their income, the only answer for the USPTO is to pay less and less attention to the case.
Some IP attorneys, me included, REQUIRE our clients to paint as negative picture of their invention as possible (ALL prior art, ALL arguments against patentability), then do what they (we) can to distinguish the inventive parts. Most large companies, on the other hand, want a patent whether there is an invention or not (the reason I refuse to do large entity patenting, even though that is where the money is). Since large companies have most of the money (to spend on IP, anyway), it is understandable how this happens - but not acceptable!

Gee Mike, you could read the majority of these comments from your "boys", who follow and agree with you allways, (dont try to think for themselves) but if you read them like they read you, it is no wonder you have such a warped concept of reality..

If you can say ridicious statements, and have a bunch of people fully agree with you then that re-inforces your crazy statements.

I also not that you as usual always just make claim, with no SUPPORT or backup for those claims whatsoever.

Who needs the truth or facts right ?? When you can just say what you like and know there will be your usual group of punters that will eat up what you say, and 100% agree with you, because Mike, you are ALWAYS RIGHT, NEVER WRONG, and you know EVERYTHING.

(Sure you're not 'Q' ?)

Your so called "bad patents", so Mike what is that, we can only assume that is your OPINION that a patent is bad, ofcourse you know better than the patent office and trained patent officers, and people "skilled in the art", But NO Mike you are the oricle of all knowledge and information.

MIKE, why does the patent office come to you when they are a bit confused about a patent, clearly you know it all, you have intimite understanding of all technologies, advancements, and idea's.

If you say a patent is "bad" then people should damn well sit up and listen to you,, after all.. Your MIKE..

trouble is Mike, it is quite clear that you knowledge on any subject appears to be deeply lacking, ive read many things were you talk of technical or scientific principles and its clear you really dont have a clue.

Equally clear if you're significant lack of knowledge in the law, it shows with every statement you make.

But that is not the worst thing,, what is also clear is that if you dont know, you wont check you will simply "make it up" or draw from your personal opinion.

Never from facts, or the truth.. it would seem..

Considering the massive economic harm that bad patents can do

FOR EXAMPLE ????

Where is a list or even a single example of a patent (that you deem "bad" doing MASSIVE ECONOMIC HARM ??

Oh, thats right Mike does not need facts, he has a team of "yes" men who seem to consider the word of Mike to be akin to the word of God!!!

How many patent litigation court cases have led to the cancillation of the patent ?

Name some..

The courts are not in the job of determining if the patent case is a valid patent, they leave that to the patent office.
The court enforces the rule of law, whatever law, including patent law.

They dont usually cancel the law, they try that case of its own basis.

Yes, Mike we ALL KNOW you dont like alot of laws, and as such you dont feel you need to live within those laws, we know you willingly promote and support others who also feel they dont need to live by the existing laws.

That DOES NOT MAKE WHAT YOU DO RIGHT, ETHICAL or LEGAL..

Mike when you make statements about the patent office, that are clearly wrong and misinformed, some people (those that think for themselves) will see that you have NO UNDERSTANDING of any of the patent process and what it involves.

but that a patent examination process happens with no real "opposition," who has the real incentive to point out the state of the art or the prior art

The Opposition of patents and do not meet the requirement of a patent is THE PATENT OFFICE and the person/group applying for the patent.

The person who submits a patent application has to prove to the patent office that there is no prior art, and it is not obvious, they also have to pay the patent office to do its own research and study to determine if there is prior art, or some other factor that could stop the patent application from being granted.

There is also the ability that if you allready have a patent that you think covers what has been applied for, and the patent office does not 'pick it up' you have a right to present your case to the patent office and have the new application voided.. that can be done at any time.

So if there was really prior art, there is no reason if you can PROVE IT,, using that proof to invalidate a patent.

But that does not happen very often, and why,, because patents are checked correctly in the first place, and if there is prior knowlege, or obviousness, the patent is changed or rejected before its granted.

Once a patent is grated, its a patent, its not good or bad, and cannot be good or bad, its what you do with them, and what they do that determines if an invention is good or bad..

By your definition, a bad patent would make no money because it does not provide anything new that people are willing to pay for..

And a 'good' patent is a popular one that is able to make lots of money for its owners.

OR is your definition of GOOD or BAD for patents just dependent on who owns them, and what is being done with it.

So is the patent for the mouse trap a good or bad patent ?

And if it is a 'bad' patent, would that imply that we would be better off without it ?

No, you definition of good or bad for patents has nothing to do with the actual patents, what they do or how they benifit manking.

You opinion of good or bad patents, seems to be based on your ability to exploit it for your own gains, or not..

If you feel something is of so much value to you that you would want the patent for that 'thing' to be invalidated, then its a GOOD PATENT, but bad for you, because you cannot gain advantage of it, even though you contributed ZERO to its development or deployment.

Because you cant make a dollar off someone elses invention, its a "BAD" invention..

Talk about a 'binary' mindset !!!..

So mike, I hope you can provide a list of patents you consider "bad" and why. and an explenation as to why you think these patents are 'bad'.

List some 'good' patents as well, if you can, for balance.
(if you think any patents are good).

Then list a few patents that have caused massive econimic damage, with citations.

Mabey you can explain the difference between a Patent Office and a Court of LAW, and the difference between an engineer and a lawyer ?

And then explain why the courts defer the expert advice from the patent office, and scientific/engineering community when it comes to issues outside the realm of law.

they ask the experts in the field, the people who know about prior art and obviousness.

They do NOT ASK you MIKE, for good reason, they talk to people who know what they are talking about, experts.

FOR and AGAINST, for both sides of the argument, they dont just take a guess, or try to work out the underlying technology by themselves.

They talk to experts, and experts from both sides, for balance.

I dont believe im trying to explain the legal system to you Mike you claim deep and intimite knowlege of 'well everything'. So why is it so clear you have huge holes in your knowlege, as shown by your writings.

Yes, Mike, we know its a "no brainer" you get your band of merry followers, who hand off your every word.

But what about MOST of the rest of the world Mike, what do you think they think of you, and your 'claims'?

It's not that I think you are wrong, I just think you cannot grasp the subject matter, and correct for that with false and unsupported claims, and opinions.. intersperced with the usual 'cut n paste' from some other 'like minded' follower.

Lets just start with your explination of what constitutes a "good" and a "bad" patent, and how that relates to the utility of said patent..

As for the economic harm done by patents, we've discussed nearly 50 studies on the topic. I'm surprised you've ignored them all. Bessen and Meurer's research is a good place to start if you'd like to educate yourself.

Yes, Mike we ALL KNOW you dont like alot of laws, and as such you dont feel you need to live within those laws, we know you willingly promote and support others who also feel they dont need to live by the existing laws.

I'd also like to state that this claim is false. It is true that there are a lot of laws I don't like. But I do my best to live by them anyway. To accuse me otherwise, without proof is below even you, Darryl.

They do NOT ASK you MIKE, for good reason, they talk to people who know what they are talking about, experts.

You'd be amazed at the people who do ask me stuff, Darryl, but I'm impressed at your confidence in knowing who does and who does not ask me stuff. I would imagine that if you were to see my inbox for just last week, you'd change your tune on this one. :)

"Trolls" seem to be the ones driving much of the invective associated with patent lawsuit awards, but the fact of the matter is that by a wide majority the number or lawsuits that wend their way through the court system to trial and appeal are of the bread and butter type...one practicing company asserting its rights against a practicing competitor intent of siphoning off market share. This observation has been made by Paul Janicke, among others.

Re:

"Trolls" seem to be the ones driving much of the invective associated with patent lawsuit awards, but the fact of the matter is that by a wide majority the number or lawsuits that wend their way through the court system to trial and appeal are of the bread and butter type...one practicing company asserting its rights against a practicing competitor intent of siphoning off market share.

Wow. Now there's a neat trick of obfuscation that only a truly devious lawyer could come up with. Note the careful definitional choice by our friendly patent lawyer. He does not discuss what patents are used to force others to pay. He does not count patents that are used just to get questionable licensing deals. He does not count the patents that are used in lawsuits leading to settlements. He doesn't even count patents used in lawsuits to a district court ruling. No, he will only count those that go all the way to appeal.

Want to know why? Because the majority of all those other things are done by the "trolls."

Re: Re:

I happened to mention Janicke because he, among others, has done work in this area.

Additionally, the general thrust of the article, is directed to awards after trials on the merits. I limited my comment accordingly.

By the way, not once in 32 years of practice have any of the people and companies I have represented been shaken down by so-called "trolls". My experience is representative of that by most of my close colleagues, most of whom have practiced for a similar duration. Perhaps this is due to the fact we generally practice in technology areas outside of the very few that seem to attract troll-like behavior.

So-called trolls can be a real pain in the rear, but they are in the clear minority with respect to patent litigation.

Re: Re: Re: Re:

Lemley was addressing another issue (e.g., patents that have been asserted multiple times in litigation). Most patents are not asserted multiple times. Moreover, the former class of patents make up but a small fraction of litigation.

Like I mentioned, you may want to take a look at some of the work by Janicke.

The only fair way to evaluate a new patent is to have a committee or group of people each evaluate it and then come to a group consensus. To think that one examiner decides the worth or legality of a patent is stupid and an antiquated way of decision making. Are the examiners Patent Attorneys? If not then how can they evaluate squat?

Thats your example !!!!!.... you suck !!

Yea I read that, as you asked, considering that it was the ONE and ONLY example you could find. So I read it,, Have YOU read it Mike.

If you have read it and if by some quirk you understood it, would you like to explain to us how that is supporting your claims ?

The entire point of that report is the debate regarding if it is possible or ethical to patent Genes and specific DNA sequences.

And goes on with discussions on methods and specific technical issues, regarding patents on Genes

If it not as you want to lead us to believe, a case where for example i4i sues Microsoft for something, it goes to court and the court rejects the patent as opposed to awarding a win and lose to the respective parties.

Where are you examples of this happening Mike ????

Company A takes company B to court over a patent, court rejects the patent !!..

NO MIKE,,

Company A takes company B to court over a patent dispute and the court rules one way or the other.

BUT OFCOURSE MIKE, you have example after example after example of this happening, where courts dont just rules on the breaching of a patent, but they also actually judge the patent and reject it !!!..

Doesn't happen Mike, as you well know..

IF it did, you would have certainly provided me (us) with a stronger example of your 'claim'..

But no, you give us a half assed example, that shows nothing that you are trying to claim is true..

I guess you just dont expect that many people to check your facts and to actually see what crap you try to feed us Mike..

You should be ashamed..

Big on talk and a vacuum of facts.

You'd be amazed at the people who do ask me stuff, Darryl, but I'm impressed at your confidence in knowing who does and who does not ask me stuff. I would imagine that if you were to see my inbox for just last week, you'd change your tune on this one. :)

I most certainly would be amazed,,, but im not talking about how big your inbox is, or whether you want cheap online viagra..

What you do, (as you know), is carfully misquote others comments and statements, spinning them to suit your own, limited, poorly thought through arguments.

For example, you gave me a link about patents on genes, I read it..

But that link is not a supporting case for your argument, its a different thing alltogether, and I have to wonder Mike, if you cannot see that.

Or if you can see its not the same, but use it anyway, because if you dont read that report, and just listen to you Mike, then you may be able to convince people that what you are saying is true or accurate..

But NO,, thats never the case, you use, spin, and manipulate information to try to make your again, weak argument..

And the VERY VERY LIMITED, number of example you cite never pan out to be actually what you claim them to be..

Therefore, you are basically lying to us, and hoping that we will not check your homework and catch you out in an outright, dirty lie..

I'll quote for you: "On the merits, we agree with Desire2Learn that claims 36-38, as properly construed, are invalid for anticipation as a matter of law by CourseInfo 1.5 and Serf."

Courts invalidate patents all the time.

If it not as you want to lead us to believe, a case where for example i4i sues Microsoft for something, it goes to court and the court rejects the patent as opposed to awarding a win and lose to the respective parties.

Um. I'm not sure what you mean by "as opposed to awarding a win and lose to the respective parties." That's part of the lawsuit. The defendant notes that the patent is invalid, and the court determines if the patent is valid or not -- and if the court says it's not valid, then that patent is no longer valid.

For someone who keeps yelling at me for not understanding stuff, Darryl, this is really really basic patent law stuff.

Company A takes company B to court over a patent dispute and the court rules one way or the other.

Indeed. And in the course of doing so, it often will invalidate the patent. Not sure what you're arguing here.

Doesn't happen Mike, as you well know..

IF it did, you would have certainly provided me (us) with a stronger example of your 'claim'..

It happens all the time, including in the lawsuit I pointed to you at the beginning. The patent was invalidated. Are you really claiming it was not?

I guess you just dont expect that many people to check your facts and to actually see what crap you try to feed us Mike..

Darryl, I was right. Anyone can check and see I was right. Are you really claiming that Myriad's BRCA patents are still valid?

What you do, (as you know), is carfully misquote others comments and statements, spinning them to suit your own, limited, poorly thought through arguments.

I've done no such thing. If you cannot support your statement, I would suggest you issue an apology for lying.

Therefore, you are basically lying to us, and hoping that we will not check your homework and catch you out in an outright, dirty lie..

Darryl, the only one lying here is you. My example was entirely accurate, and I provided you with others.

Mike Masnick In Denial

"Ah, the royal "we." From my experience many more people understand these arguments and recognize my position rather than come to "disrespect me." The only people I've seen get upset are folks who abuse the system for profit."

As far as I know the "we" does not include any royalty, I expect that TechDIRT is beneath their notice. But to be frank, you have acquired a reputation in the inventor community. People make fun of you ignorance about the system all the time.

The Constitution spells out rights for inventors and those rights are implemented in patent law. Patents have economic value and when others copy inventions covered by a patent which is in force the owners of those patents have the right to seek redress. Suing a sleazy thieving infringer is not abusing the system. It is defending a property right.

Terrible examples Mike,,, 3 out of 10, Do better,,

Darryl, I was right. Anyone can check and see I was right. Are you really claiming that Myriad's BRCA patents are still valid?

Great argument Mike LOL,, Im right and your wrong,, strong case that one, You should be a laywer !!!!, with those debating skills !!..

No Mike, you are WRONG,, I know you have a Fonzy type inability to make that statement, but its as true as you really dont know about patents, the law, business.. or much else it seems.. (just going by what you are seen to have said)..

As for your rubbish 'examples' do you even understand any of it Mike ??? Clearly you do not.

The first example you posted was about was not about a "bad patent" by even your weak definition.

The first case was about the principle of patenting specific DNA sequences, as opposed to patenting techniques for DNA analysis. It goes to the case of being able to patent a natural discovery.

It WAS NOT about a "bad patent" like your example for this article, where you think the issued patent is bad because it does something, that someone else wants to do.. and its therefore bad because they cant do it without legally paying for it by license.

But that same company is not stopped from developing their own competing methods or technology, makeing a better mouse trap.

So it was NOT about "bad patents" and it was not a case where the patent was thrown out because it was technically incorrect, it was judged upon because it was attempting to patent something that everyone has, and is a discovery.

Oh, yea, and your second 'example' is a clear case of prior knowledge, and ofcourse the law allows patents to be rejected if you provide evidence after the patent is issued that shows prior knowledge.

Its a legal process, and says nothing about the utility, or value of the actual development, its is based upon the original patent being invalid because of prior art, the court is not rejecting the patent because they think its a 'bad' patent..

NO MIKE, that is your strawman, they are rejecting it because it is an invalid patent, because it does not meet the requirements for a patent, if that prior art had of been available to the patent office before the patent was applied for, the patent office would have rightly rejected the patent.

That is how the patent system works, the courts ruling that a patent is invalid because it fails to meet the legal requirements of a patent, IS NOT THE SAME..

NOT THE SAME, as a patent dispute between two companies, that leads to the court rejecting the patent.

The only type of patent dispute that would be rejected is invalid patents due to after issuing, it is found they are not legally valid..

But get a patent that is legally valid, ie no prior art and so on, then find cases where a court has settled a patent dispute by rejecting the patent ??

NO, Mike, you can not and will not provide those kinds of examples..

And the examples you do provide just show you dont understant much at all, particularly patents and the law..

So again, No Mike, you are wrong, not right..

And if you read the examples YOU gave me, you would or at lease should be able to work that out, after all you claim deep knowledge in these issues..

(claim deep knowledge, display little knowledge).

Or your just trying to convince those that dont think for themselves. (and I guess dont invent or create much either).

Re: Terrible examples Mike,,, 3 out of 10, Do better,,

Darryl,

they are rejecting it because it is an invalid patent, because it does not meet the requirements for a patent, if that prior art had of been available to the patent office before the patent was applied for, the patent office would have rightly rejected the patent.

Exactly what you said initially was impossible.

Your original statement:

The courts are not in the job of determining if the patent case is a valid patent, they leave that to the patent office.

Thanks for admitting you were wrong and I was right and for apologizing for your error. Mighty big of you.

You are not RIGHT Mike..

I expect that TechDIRT is beneath their notice. But to be frank, you have acquired a reputation in the inventor community. People make fun of you ignorance about the system all the time.

Too easy, its like shooting fish in a barrel..

But its not often you find such ignorance from someone who claims the deepest understanding..

Darryl, I was right. Anyone can check and see I was right. Are you really claiming that Myriad's BRCA patents are still valid?

Dont you understand your OWN argument, Yes, I know that patent is invalid, but WHY IS IT INVALID MIKE, its because it was an attempt to patent something that is generally not patented, it was patented, but the argument against the patent was about the legal standard of being able to patent DNA directly, as opposed to patenting specific methods of DNA analysis and minipulation, of which there are THOUSANDS OF TOTALLY VALID PATENTS..

The other 'case' was about prior knowledge, that was not rejected as a 'bad' patent, it was rejected as a VALID patent, because it did not meet the legal requirements for the patent to be issued.

THAT IS NOT THE SAME..

As a company taking another company to court over the USE of a patent illegally, the court then determines if the company is using the patent illegally and decides accordingly.. (as you damn well know).

How often, has a legally valid, issued patent been rejected because the court though that the patent was not 'up to snuff'. Or rejecting it as a bad patent.

They do and can reject it if it is proved that the patent should not have been issued in the first place.. Such as prior knowledge, or issuing a patent on something that is decided not allowed to be patented, (specific DNA sequences).

But apart from that, you go to court with a patent dispute, the DISPUTE is decided in court, not the patent..

If the dispute is about the validity of the patent, then its about the validity of the patent, and that case will decide if that patent is valid or not.
.
But most cases, are not that, its about another company using illegally the patent of another company..
In those cases, the patents ARE never rejected, unless it is shown to be illegally invalid (prior art, or whatever).

But if its not proved invalid, its not ruled on, and the court has NO ABILITY to reject legally valid patents "for no reason" except they dont like them.

They CANNOT DO IT, it is not in their scope to do it, unless its specifically about the validity of the patent.

BUT IF IT IS VALID, it is not a 'bad' patent, and the subject of the patent is not in dispute, what is in dispute is someone else using that patent..

And if someone else is using it, and making money off it, its hard to think that the patent could somehow be that "bad", if it was why would anyone use it ?

So Mike, again, you dead wrong, and/or you just dont get it, and if that is the case, what are you doing claiming some level of understanding..

And NO Mike, I do not lie, All I write here is based on information you directed me to, the same information anyone else here can read, and if they have any understanding they too will see you for what you are, and for what you are not.

But dont accuse me of lying, Mike.

But instead justify your argument with facts that actually show what you claim please..

your facts are wrong

Mike, get your facts straight..you say "An average examiner spends just a few days on a patent, which is hardly enough time to recognize what the real state of the art might be. -Ah, NOT the case...a Patent can take 4-5 years before it is granted. They go through several Office Actions....heaps of Prior Art are searched....

Re: your facts are wrong

Mike, get your facts straight..you say "An average examiner spends just a few days on a patent, which is hardly enough time to recognize what the real state of the art might be. -Ah, NOT the case...a Patent can take 4-5 years before it is granted. They go through several Office Actions....heaps of Prior Art are searched....

Ian, get your facts straight... While it takes years for a patent to get granted, that doesn't mean that a patent examiner spends all of those years on a patent. Studies have shown the average patent application gets a grand total of 18 hours of attention from an examiner. So... um... my facts were straight and yours were not.